MIGRATION - Review of decision of the Refugee Review Tribunal - application for protection visa - whether the applicant has a well-founded fear of persecution for reasons of political association - whether the applicant was denied procedural fairness due to delay in proceedings - whether the decision is reviewable - where solicitor acting for applicant failed to attend hearing - whether solicitor should pay the costs.

SZABF v Minister for Immigration [2003] FMCA 141 (9 April 2003)

MIGRATION - Review of decision of the Refugee Review Tribunal - application for protection visa - whether the applicant has a well-founded fear of persecution for reasons of political association - whether the applicant was denied procedural fairness due to delay in proceedings - whether the decision is reviewable - where solicitor acting for applicant failed to attend hearing - whether solicitor should pay the costs.

(2) Applicant's solicitor, Mr Jyoti Bharati, to pay the respondent's costs assessed in the sum of $4,500 pursuant to Part 21 rule 21.07 of the Federal Magistrates Court Rules.

(3) Order (2) stayed until further Order.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY

SZ 1109 of 2002

SZABF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India, he is a Muslim and his ethnic group is Indian Tamil. He has lived for most of his life in Tamil Nadu. He arrived in Australia on 16 March 2000. On 14 April 2000 he lodged an application for a protection (Class XA) visa. The application was considered by a delegate for the Minister and rejected on 30 May 2000. On 22 June 2000 the applicant applied for a review of that decision by the Refugee Review Tribunal (RRT).

2. On 15 August 2001, well over a year later, the Tribunal interviewed the applicant. On 16 September 2002, a further year later the Tribunal made its decision, it took almost a further month before the Tribunal handed the decision down. In contrast with this delay the matter has come to this court within almost six months of the decision by the Tribunal.

3. The applicant claims a well-founded fear of persecution arising from his association with other members of his family who appear to have been associated with the LTTE. The applicant denies his own association with that group. He also claims a fear of police action against him and in this regard advised the Tribunal he had been arrested twice, in 1998 and 1999. The applicant claimed that for six months prior to his coming to Australia he hid in the home of a friend in order to avoid being kidnapped by the LTTE.

4. The applicant holds the degree of BSc and is an IT specialist. Shortly before he left for Australia he was considered for employment in the United States. That did not occur. The applicant is undoubtedly right when he tells me that had he gone to the United States he would be earning a lot of money and would not be in the difficulties in which he now is.

5. The Tribunal rejected the applicant's claims. At [CB 9] it says:

"The applicant's testimony of when he developed a fear that the LTTE might kidnap him was most unsatisfactory and unconvincing. The Tribunal finds his evidence of being able to secure his uncle's release from Indian Police custody most implausible in the circumstances of his claimed profile with the police. The Tribunal does not accept the detail or the overall impression sought to be created by the applicant of living in danger, being precariously placed between a police interest in his activities, despite his claimed innocuous connection with the LTTE, and the potential threat from the LTTE for being a possible informer."

Later on the same page, the Tribunal says:

" The Tribunal finds the applicant's evidence of the alleged threats from the LTTE, based on their fear that he may be in a position to disclose information to the police of their operations, to be thoroughly unsatisfactory and unreliable. The Tribunal finds that the applicant was evasive and inconsistent in his testimony and gave an account of threats from the LTTE that was confused, unconvincing and generally lacking in cohesion and credibility."

Finally at [CB 90], the Tribunal says:

" The applicant's testimony of contact with his family after he had left India was clearly fabricated as he gave evidence."

6. The applicant provided me with some written submissions which dealt with the question of delay and argued that it should be accounted as a denial of procedural fairness. The basis of that argument was that the delay brought this case within the regime that commenced in October 2001 and which included the imposition into the Migration Act 1958 (Cth) of s.474 ("the privative clause"). This, the applicant claims, disadvantaged him.

7. I have no doubt that if the Tribunal had made a decision which would otherwise have been reviewable but which was not reviewable because of s.474, he would have been disadvantaged. But I do not believe that that would constitute a failure to provide him with procedural fairness. The laws of Australia are constantly changing, they are constantly being amended. Sometimes this is for the benefit of people and sometimes to their detriment. In any event what some might consider to be the draconian effect of s.474 has been considerably lessened by the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth of Australia [2003] HCA 2.

8. The other matters raised by the applicant are a direct attack upon the findings of the Tribunal. At the hearing before me the applicant repeated in short form his claims. It is the applicant's view that the Tribunal "got it wrong" and should have believed him. If the Tribunal had believed him it would have granted him refugee status.

&qu;
ot; It is not for the court, on reviewing a decision of the Tribunal, to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal, or upon any such view to conclude that the Tribunal's assessment of the applicant's claims should not have been made. Those evaluative processes are for the Tribunal."

"This was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give reasons for its decision, not the subset reasons why it accepted or rejected individual pieces of evidence."

In this case the Tribunal did give its reasons as to why it did not accept the applicant's evidence.

11. I am unable to find any indication of jurisdictional error reviewable under s.39B of the Judiciary Act 1903 (Cth) from the statement of the applicant, his written submissions or the reasons for decision of the Tribunal. I dismiss this application.

12. Mr Reilly who appears on behalf of the Minister has made an application which would probably fall under Rule 21.07 of the Federal Magistrates Court Rules for an order for costs against Mr Jyoti Bharati, solicitor.

13. The circumstances in which that application is made are as follows. Mr Bharati was the solicitor on the record who completed the application on behalf of the applicant. Mr Bharati attended a directions hearing when this matter was set down for trial and the usual orders were made. Those orders included an order that the applicant put on an amended application and an affidavit in support. No amended application was filed.

14. The grounds of the application were as follows.

"The RRT failed to act on the proper principles into consideration of the merits of the case (sic).

The RRT did not act in good faith in making decision.

The decision involved an error of law being an incorrect application of the law to the facts as found by the person who made the decision."

15. On 3 April 2003 there was filed on behalf of the applicant some submissions. These submissions withdrew the ground of bad faith.

I have little doubt that this withdrawal came as the result of a letter which is annexed as Annexure D to an affidavit of Rohan John White dated 4 April 2003. The letter is dated 20 January 2003 and says in part:

"Furthermore, whilst the current application alleges that the RRT did not act in good faith in making the decision, no particulars or evidence are provided in support. We refer you to the recent decision of Heerey, Moore, and Kiefel JJ, in SCAS v Minister for Immigration (2002) FCA FC 397 wherein their Honours stated at paragraphs (19) that, "an allegation of bad faith is a very serious one" which "shall not be advanced by an advocate unless there are proper grounds for doing so. (Our Emphasis.)

In these circumstances, please note that if the applicant is ultimately unsuccessful, the respondent may make an application for indemnity costs or seek an appropriate order from the court on the basis for any award for costs be borne by the applicant's solicitor."

16. When the applicant appeared before me today, although his solicitor was still on the record, his solicitor did not appear. The applicant told me that the solicitor had told him that he was unable to attend. Mr White gave evidence at the end of the hearing that at approximately half past two, some 15 minutes into the hearing, he had been told that Mr Bharati was in fact next door at a directions hearing. Mr White said that he went next door and he saw Mr Bharati there.

17. It is quite unacceptable for a solicitor to put himself on the record in relation to a matter and then not to appear or to advise the court that he is ceasing to act. It is particularly unacceptable when one suspects that the solicitor may be taking fees from a person who has little ability to pay them and who quite genuinely believes that he has good grounds for seeking asylum in this country. The fact that this particular applicant was not believed upon on his evidence by the Tribunal is not to the point. If Mr Bharati no longer wished to act for him he should have said so, both to the court and to the applicant.

18. I'm satisfied that Mr Bharati could have attended this hearing. I am satisfied that he had fair enough notice of the fact that an application under rule 21.07 may be made.

19. I propose to order that Mr Bharati pay the costs personally in the sum of $4,500 which I assess as being the reasonable costs of this hearing pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court rules. I will however go further. I will order that these papers be referred to the Registrar of this court for the purposes of then referring them to the Law Society of New South Wales so that disciplinary action against the solicitor can be considered.

20. Since giving this ex tempore judgment I have been shown a copy of the letter and an attachment which was sent to the Registry. In the circumstances I propose to give Mr Bharati 7 days in which to advise my associate if he wishes to be heard on the matter. I will stay the order I made as to costs until further order.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM